Conditions Of Sale
1.1 In these conditions, unless the context requires otherwise:
‘BUYER’ means the person who buys or agrees to buy Products from the Seller.
‘PRODUCTS’ means the articles which the Buyer agrees to buy from the Seller pursuant to any Contract.
‘SELLER’ means Mahtay Holdings Limited (registered in England under number 10111215)
of 138 Holborn, London, EC1N 2SW.
‘CONDITIONS’ means the terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the buyer and the seller
‘CONTRACT’ means each individual contract for the purchase and sale of Products between the Seller and the Buyer.
‘WRITING’ includes email, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be constructed as reference of to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
- BASIS OF THE SALE
2.1 These Conditions shall apply to all Contracts between the Seller and the Buyer to the exclusion of other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Products shall be deemed to be an offer by the Buyer to purchase the Products subject to these Conditions.
2.3 Acceptance of delivery of the Products shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 No variation to these Conditions shall be binding unless agreed in writing by the Buyer and the Seller.
2.5 Any advice or recommendation given by the Seller or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability of the part of the Seller.
3.1 No Contract may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.2 The Seller may cancel this contract at any time before the Products are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of them. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
- PRICE OF PRODUCTS
4.1 The price of the Products shall be the price listed in the sellers published price list current at the date of delivery of the Products by the Seller (notwithstanding anything to the contrary on the order by the Buyer) (“the Price”).
4.2 A deposit will be charged to the Buyer on all containers, cylinders, crates and returnable bottles supplied, but full credit will be given to the Buyer provided the crates and returnable bottles are returned promptly and undamaged, and any containers and cylinders are returned no later than one month after receipt, provided always that such goods shall remain property of the Seller.
- TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Products on or at any time after delivery of the Products, unless the buyer wrongfully fails to take delivery of the Products, in which event the Seller shall be entitled to invoice the Buyer for the Price at any time after the Seller has tendered delivery of the Products.
5.2 The Buyer shall pay the Price of the Products in full and without any set off or deduction before the 20th day of the month following the month of delivery or as arranged by direct debit notwithstanding that delivery may not have taken place and the property in the Products has not passed to the Buyer. The time for payment of the Price shall be of the essence of the Contract. Receipts for payment will be issued on request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: –
5.3.1 Cancel any Contract or suspend any further deliveries to the Buyer;
5.3.2 Charge the Buyer interest (both before and after judgement) on the amount unpaid, at the rate of 4 per cent per annum above the National Westminster Bank Plc base lending rate from time to time, from the due date until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
5.3.3 Cancel any bonuses, agreed overriding discounts, volume target payments, promotional monies, gifts, prizes or free stock.
5.4 The Seller may appropriate any payment made by the Buyer to such Contract as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
6.1 Delivery of the Products shall be made by the Seller to the place or places specified in the Contract or as subsequently agreed delivery shall be complete when the Products arrive at such place(s). The Seller and the Buyer shall agree the date and time for delivery of the Products (“the Delivery Date”). Any dates for delivery quoted by the Seller prior to the date of the Contract or appearing in the order from the Buyer shall not be binding on the Seller unless otherwise agreed in writing.
6.2 Time for the delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3 Where the Buyer refuses or is unable to take delivery of the Products on the Delivery Date then unless such refusal or inability is due to the fault of the Seller the Seller shall charge to the Buyer the reasonable cost of storage of the Products and the Seller shall be entitled to invoice for the Products and the storage costs from the Delivery Date. The Seller will not accept any responsibility for the storage of the Products or any responsibility for any damage to the Products whilst in storage.
6.4 Where the Seller has agreed to deliver the Products by separate instalments in accordance with an agreed delivery schedule, each separate instalment shall be invoiced and paid for in accordance with the provisions in these Conditions and each instalment shall be a separate Contract which cannot be cancelled due to a breach of another contract.
6.5 The failure of the Buyer to pay for any one or more of the individual deliveries of the Products on the due dates shall entitle the Seller:
6.5.1 without notice to suspend further deliveries of the Products pending payment by the Buyer; and/or
6.5.2 to treat the Contract and any other Contract existing at the time as repudiated by the Buyer.
6.6 Notwithstanding that the Seller may have delayed or failed to deliver the Products (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Products in full.
6.7 If the seller fails to deliver the Products for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault (in which events, the Seller shall have no liability for such failure) and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar products to replace those not delivered over the price of the Products.
7.1 The Buyer shall be deemed to have accepted the Products 24 hours after delivery of the Buyer.
7.2 The Buyer shall take delivery of the Products tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
7.2.1 such discrepancy in quantity shall not exceed 5%; and
7.2.2 the Price shall be adjusted pro rata to the discrepancy.
7.3 After acceptance the Buyer shall not be entitled to reject the Products.
7.4 If the Buyer properly rejects any of the Products which are not in accordance with the Contract the Buyer shall nonetheless pay the full Price for such Products unless the Buyer promptly gives notice of rejection to the Seller and at the Buyer’s cost returns such Products to the Seller before the date when payment of the Price is due.
7.5 Notwithstanding 7.1 above, any delivery acknowledgement document signed by or on behalf of the Buyer shall be conclusive proof of the quantity of the Products delivered and that the Products are free from any defects that would be apparent from a reasonable inspection of the Products by the Buyer (notwithstanding that no such inspection shall have occurred).
- RISKS AND PROPERTY
8.1 Risk of damage to or loss of the Products shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Products, the time when the Seller has tendered delivery of the Products.
8.2 In spite of delivery having been made property, title and property in the Products, including full legal and beneficial ownership shall not pass from the Seller until:
8.2.1 the Seller has received in cash or cleared funds payment in full for:
8.2.2 all goods delivered to the Buyer under this Contract; and
8.2.3 all other contracts.
8.2.4 payment of the Price and the price of the Products shall include the amount of any interest or other sum payable under the terms of the Contract and all other contracts between the Seller and the Buyer under which the Products or products were delivered.
8.3 Until property in the Products passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Products and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall not remove or obscure any identifying packaging on or relating to the Products, store the Products (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property and maintained in a satisfactory condition.
8.4 Notwithstanding that the Products (or any of them) remain the property of the Seller the Buyer may sell or use the Products in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Products passes from the Seller the entire proceeds of sale or otherwise of the Products shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
8.5 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Products has not passed from the Seller.
8.6 Until such time as property in the Products passes from the Seller the Buyer shall upon request deliver up such of the Products as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Products are situated and repossess the Products. On the making of such request the rights of the Buyer under clause 8.4 shall cease.
8.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Products which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.8 The Buyer shall insure and keep insured the Products to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Products passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
- WARRANTIES AND LIABILITY
9.1 The Seller warrants that the Products will correspond with their description as set out in the Contract.
9.2 The seller warrants that the products will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 subject to the following conditions: –
9.2.1 The Seller shall be under no liability in respect of any defect arising from wilful damage to, negligence of the Buyer continued use, change of constitutional consistency, abnormal storage conditions including but not limited to the lack of refrigeration or seals (if required), failure to follow the seller’s instructions (whether oral or in writing) or misuse of the Products;
9.2.2 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment; and
9.2.3 The above warranty does not extend to any part of the Products not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.3 The Seller warrants that all Products will be delivered at least 10 weeks prior to the ‘best before’ date of the Products unless otherwise agreed.
9.4 Subject as expressly provided in these Conditions, and accept where the products are sold to a person dealing as a customer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute including the Sale of Goods Act 1979 or common law are excluded to the fullest extend permitted by law.
9.5 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the products is notified to the Seller in accordance with these Conditions and the Seller is given opportunity to inspect the Products or they are returned to the Seller, the Seller shall be entitled to replace the Products (or the part in question) free of charge or, at the Sellers sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price), but the Seller shall have not further liability to the Buyer.
9.6 Except in respect of death or personal injury caused by the Seller’s negligence or any other matter in respect of which it would be unlawful for the Seller to exclude or restrict liability, the Seller shall not be liable to the buyer by reason of any representation, or any implied warranty condition or other term or any statutory duty, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, or other claims for consequential or indirect loss or compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents, or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer and the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in talk or in contract (including negligence) breach of statutory duty or otherwise shall in no circumstances exceed the Price of the Products.
10.1 All Products sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any trade mark other than those applied by the Seller be marked on or applied in relation to the Products.
10.2 No right or licence is granted under this contract of sale to the Buyer under any patent, trade mark, copyright, registered design or other intellectual property right except the right to use or resell the Products and all intellectual property rights in the Products retained by the Seller.
If the Buyer shall make default in or commit breach of any Contract with the Seller or of any other of its or his obligations to the Seller including failing to pay the Price when due, or if the buyer is unable to pay its debts as they fall due, or if any distress or execution shall be levied upon the Buyer’s property or assets, or if the Buyer shall make any arrangement or composition with creditors or commit any act of bankruptcy, or if a petition or receiving order in bankruptcy shall be presented or made against him or if the Buyer is a limited company and any resolution or petition to wind up (other than for purposes of amalgamation or present reconstruction) shall be passed, or if a receiver of the Buyer’s undertaking property or assets or any part thereof shall be appointed, the Seller shall have the right forthwith to determine any Contract then subsisting with immediate effect and upon written notice of such determination without prejudice to any claim or right the Seller may otherwise make to exercise and without compensation to the Buyer on termination for any reason, the Buyer shall immediately pay in full to the Seller all the Seller’s unpaid invoices.
12.1 No waiver by the Seller of any breach of a Contract by the Buyer shall be considered as a waiver of any subsequent breach of the Contract or any subsequent Contract.
12.2 In order to ensure the continuing quality of the Seller’s Products, the Buyer will permit a representative of the Seller to inspect and sample any Products remaining in the Buyer’s possession and control.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 The parties agree and declare that none of the provisions of these Conditions are intended to be enforceable pursuant to The Contract (Rights of Third Parties) Act 1999 by any person who is not a party thereto.
12.5 The Seller but not the Buyer may subcontract or assist its rights and obligations under the Contract.
12.6 Any notice under or in connection with a Contract shall be in writing and shall be served by first class post or by hand on the party or sent by recorded delivery or e-mail at or to the address of the party set out in the Contract or at or to such other address as may be subsequently notified by one party to the other. In the absence of evidence of earlier receipt any notice shall be deemed to be duly served; if delivered personally when left at the address; if sent by recorded delivery 3 days after posting; if sent by e-mail, when received.
12.7 The Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
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